Opinion
CV-22-00045-TUC-SHR (LCK)
04-12-2023
Dorothy Becerra, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge.
Plaintiff Dorothy Becerra filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before the Court are Plaintiff's Opening Brief, Defendant's Responsive Brief, and Plaintiff's Reply. (Docs. 23, 25, 26.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in October 2019. (Administrative Record (AR) 315, 319.) She alleged disability from February 28, 2015, which she later amended to May 15, 2019. (AR 40, 315.) She was born in April 1980, making her 39 years of age at the amended onset date of her alleged disability. (AR 315.) Plaintiff ceased her eight-year employment in retail customer service in February 2015, due to a high-risk pregnancy and depression; she also has past relevant experience in data entry. (AR 43, 345.) She alleged that, as of the amended onset date, she was experiencing increased stress and worsening problems with her subacromial impingement. (AR 40-41.) Plaintiff's application was denied upon initial review (AR 134-67) and on reconsideration (AR 170209).
A telephonic hearing was held on January 22, 2021 (AR 35-63), after which the ALJ found Plaintiff not disabled (AR 13-27). The ALJ determined Plaintiff had severe impairments of fibromyalgia, migraine headaches, depressive disorder, anxiety disorder, attention deficit disorder, and diabetes. (AR 16.) The ALJ concluded Plaintiff had the Residual Functional Capacity (RFC) to perform light work subject to the following limitations: standing and/or walking 4 hours, with walking limited to 30 minutes at a time; sitting up to 6 hours; lifting and carrying 10 pounds frequently and 20 pounds occasionally; occasionally climbing stairs and ramps, balancing, stooping, kneeling, crouching, crawling, and pushing/pulling with lower extremities and right upper extremity; never climbing ladders, ropes or scaffolds, or bilateral overhead reaching; no exposure to unprotected heights, moving machinery, or work involving the safety of others; only incidental interpersonal contact that does not require frequent consultation with coworkers or the public; unskilled work with one to three step instructions; and infrequent changes. (AR 19.) The ALJ concluded at Step Five, based on the testimony of a vocational expert, that Plaintiff could perform work that exists in significant numbers in the national economy, such as addressing clerk, office assistant, and nut sorter. (AR 27.) The Appeals Council denied review of the ALJ's decision. (AR 1.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Plaintiff alleges the ALJ failed to provide clear and convincing reasons for rejecting her symptom testimony. In general, "questions of credibility and resolution of conflicts in the testimony are functions solely" for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, "[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 96-7p. "To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
Initially, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell, 947 F.2d at 344). The ALJ found Plaintiff had satisfied part one of the test by proving impairments that could produce the symptoms alleged. (AR 20.) Next, if "there is no affirmative evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). Here, the ALJ did not make a finding of malingering. Therefore, to support his discounting of Plaintiff's assertions regarding the severity of her symptoms, the ALJ had to provide clear and convincing, specific reasons. See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036).
In December 2019, Plaintiff completed a function report. She reported that pain made it difficult to sit, stand, and walk on a consistent basis. (AR 356.) She would drop things due to numbness and tingling in her hands, and she could not lift more than 25 pounds due to severe pain in her right shoulder and elbow. (Id.) She experienced fatigue that impacted her ability to focus, and anxiety and depression impacted her ability to interact. (Id.) On a typical day, she would take her meds, eat breakfast, and then watch television when she experienced medication-induced nausea. (AR 357.) Her daughter would help her dress and do her hair, after which she would take a nap. (Id.) After having lunch, she would walk to her son's bus stop with his therapist. For her youngest son, born in 2015, she provided limited care: sat with him, read to him, and sometimes walked him to the bus stop. (Id.) Her older children helped provide care for her younger son, and he had an in-home therapist 30 hours per week. (Id.) After helping her children with dinner, she would go to bed. (Id.) Pain and racing thoughts impeded her ability to sleep, limiting her to 1- or 2-hour blocks. (Id.) She used alarms as reminders for medication and personal hygiene. (AR 358.) She was unable to chop, open cans, or focus on a recipe. (Id.) However, she prepared her own simple breakfast and lunch, and would help with dinner. (Id.) Her family completed most chores, but she would load the dishwasher, and wipe down the kitchen surfaces a few times a week. (AR 359.) She shopped online because going to stores was difficult for her. (Id.) She was able to drive and go out alone, but due to anxiety, pain, and fatigue, she went out only for appointments. (AR 359-60.) She reported that her impairments impacted her ability to lift, squat, bend, stand, reach, walk, sit, kneel, stair climb, remember, complete tasks, concentrate, understand, follow instructions, and use her hands. (AR 361.) She was unable to do any of her crafting hobbies due to hand pain. (AR 360.) She explained that physical activities were painful, and she was able to walk about a half block before needing a rest. (AR 361.) Mental tasks, such as concentrating were difficult due to brain fog, and she could pay attention only for about ten minutes at a time. (Id.) She stated that she needed to review instructions several times, and she did not complete things that she began. (Id.) She noted an inability to handle stress or change, and stated exposure to them would lead to other symptoms. (AR 362.) An assistant wrote out her answers on more than half of the form because Plaintiff experienced right hand, arm, and shoulder pain. (AR 363-64.)
Plaintiff also was assisted to complete a pain form, in which she described three kinds of pain. First, severe and constant pain in her right arm, hand, and shoulder exacerbated by any movement of that limb. (AR 366.) Second, continuous aching all over from fibromyalgia, it ebbed and flowed in severity, and movement or touch made it worse. (AR 368.) Third, she experienced lower back and right hip pain 4 to 5 times per week for a few hours, which caused postural limitations as to standing or sitting for an extended period. (AR 370.) For pain, she took on a daily basis Norco and Tramadol, which would only “take the edge off,” and also Savela, which sometimes relieved the pain. (AR 369.) Norco caused constipation and sometimes drowsiness. (Id.) In December 2019, Plaintiff completed a headache questionnaire, in which she stated she experienced migraines 3-4 times per week. (AR 354.) They would last from 2 hours to several days, causing pervasive throbbing, pain in her temples and at the base of her skull, dizziness, nausea, and sensitivity to light, sound, and smells. (Id.) She was taking daily medication, which caused drowsiness; sleep and vomiting could provide relief. (AR 355.)
At the January 2021 hearing, Plaintiff testified that she first injured her back in February 2020. (AR 45.) Afterwards, she developed left hip pain and foot numbness. (Id.) After back surgery in November 2021, the pain improved but did not disappear, and she continued to experience complete left foot numbness. (AR 44-45.) She had been experiencing right shoulder pain for seven or eight years and was able to reach only to shoulder level. (AR 46.) Reaching directly in front of her was painful and she testified to experiencing hand weakness. (AR 47.) She possessed a driver's license but stated that, in the last year and a half, she rarely drove because of shoulder and back pain, as well as leg numbness. (AR 48-49.) Plaintiff testified that she saw a counselor every two weeks and a wellness coach checked on her weekly to address her spending issues, pain management, anxiety, and self-harming. (AR 49-51.) She reported that when her pain level was particularly high, she became anxious, and then both those symptoms would spiral up. (AR 53-54.) Plaintiff stated that her physical therapy was helpful, but she missed appointments due to pain or high anxiety. (AR 54.) She characterized the week of the hearing as a very bad one, in which she had missed physical therapy, counselling, and her wellness check due to pain and an inability to focus. (AR 54-55.)
The ALJ stated that Plaintiff's statements about the effect of her symptoms "were not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (AR 20.) As an initial matter, the ALJ discounted Plaintiff's testimony as to various symptoms based on a physical therapy record showing that she had returned to 85% of overall function with her daily living activities. (AR 21.) Defendant has acknowledged that the ALJ misread that record but categorizes it as harmless error. (Doc. 25 at 10.) In that record, the therapist documented a goal for Plaintiff to return to 85% of overall function but, at that time, she had achieved only 65% of her normal function. (AR 581.) Because this finding by the ALJ was not supported by substantial evidence, it cannot provide a basis to discount Plaintiff's symptom testimony.
The ALJ found that Plaintiff's reports regarding migraines were inconsistent, and they improved with medication. (AR 21.) Looking at the entire record, including those documents cited by the ALJ, the Court identified the following medical records addressing headaches. In January 2019, Plaintiff was taking Mobic and reported that her headaches were “a lot better”; they were occurring two to three times per week but were not as strong and the duration was shortened. (AR 775.) In June 2019, late 2019, January 2020, and June 2020, Plaintiff reported daily headaches. (AR 350, 356, 467, 647, 725.) In December 2019, Plaintiff reported taking daily medication but experiencing 3 to 4 migraines per week, lasting from a couple hours to a few days. (AR 354-55.) At an emergency room visit in February 2020, Plaintiff denied having a headache (AR 563), in July 2020, she denied bad headaches (AR 639), and, in September 2020, she reported having some tension headaches (AR 803). There is not substantial evidence to support the ALJ's finding that Plaintiff experienced improvement of her headaches with medication during the relevant time period. The medical record documenting improvement with medication is dated four months prior to the alleged onset date for disability. There are no other records indicating that medication continued to help the severity of Plaintiff's headaches. There is, however, substantial evidence to support the ALJ's finding that the evidence regarding headaches is inconsistent. There is significant evidence that Plaintiff experienced frequent headaches, including her daily medication. However, there is sufficient evidence to support the ALJ's finding of inconsistency because Plaintiff did not always report that her headaches were daily or severe. The ALJ concluded that Plaintiff was not as limited as she alleged by headaches, but Plaintiff's symptom testimony did not identify headaches as a primary limitation with respect to her ability to sustain employment. Although the ALJ identified a clear and convincing reason, supported by substantial evidence, to discount Plaintiff's testimony regarding headaches, that finding has little bearing on the substance of Plaintiff's symptom testimony.
The ALJ cited, generally, the degree of medical treatment Plaintiff received as a basis to discount her symptom testimony. (AR 23.) Specifically, however, he cited this rationale only as to her diabetes, which the ALJ found was well-controlled with conservative treatment. (AR 21.) This finding by the ALJ is supported by substantial evidence, and the fact that Plaintiff was able to control her diabetes with medication is a clear and convincing reason to discount her testimony about how correlated symptoms affected her functioning. SSR 16-3p § 2(b) (finding success or failure of treatment relevant to evaluating symptom testimony). Plaintiff did not, however, rely upon symptoms stemming from diabetes as significantly limiting her ability to work on a consistent basis.
The ALJ acknowledged that Plaintiff reported needing assistance in activities of daily living, but he found she was independent in many of these activities. (AR 21.) If a claimant's activities contradict her testimony, those circumstances can form the basis for an adverse credibility determination. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ noted Plaintiff could drive, perform household chores and personal care, prepare simple meals, do dishes, use a computer, read with her son, and walk him to the bus stop. (AR 22.) And he stated, without specific record citation, that Plaintiff was able to engage in daily physical activity, which was inconsistent with her testimony. (Id.) Additionally, she cared for her own children and fostered four teenagers. (Id.)
The ALJ's summary of Plaintiff's daily activities is notable for what it does not include. Plaintiff indicated she was not independent in her personal care and needed assistance from her daughter to dress and do her hair. Plaintiff reported doing very limited household chores, loading the dishwasher or counter wiping, and she completed those only a few times a week. Similarly, she did not perform much childcare; it was limited to sitting and reading with her youngest son or walking him to the bus. (AR 476.) The ALJ relied upon the fact that Plaintiff took in four foster children for a period of months. However, those children were teenagers. There is no record evidence that Plaintiff had to perform any significant activities to support those children or her older children. As Plaintiff stated, her older children helped care for their younger brother and did household chores. Additionally, she noted that her adult daughter's boyfriend performed chores at the house daily, including helping with her youngest son. (Id.) Plus, a therapist was at the house with her young son for 30 hours per week. Plaintiff stated she left her house only to attend appointments. She also testified that she had bad days or weeks when she was unable even to attend appointments. See SSR12-2p (VI)(D) ("For a person with FM, we will consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have 'bad days and good days.'")
Although Plaintiff could do limited physical things daily, she testified that she could not consistently walk, stand, or sit. As Plaintiff reported to psychologist Noelle Rohen, she spent most of her day on the couch, alternating with moving around due to pain. (Id.) No evidence contradicts this statement. Plaintiff's activities of daily living are not inconsistent with her testimony that she is unable to maintain employment on a consistent basis, due primarily to fibromyalgia, anxiety, and pain. (AR 53-54.)
The ALJ found Plaintiff's allegations that she had difficulty understanding, remembering, and applying information inconsistent with her ability to obtain a driver's license and drive a car based on her comprehension of the rules of safe driving. (AR 2223.) There is no information regarding when Plaintiff obtained a driver's license. If she did so on a typical schedule, that would have occurred long before she alleged being disabled. Plaintiff did not testify that she could not remember how to perform skills she learned long ago. She stated that she could only concentrate for short periods and to follow instructions for something new was challenging. She indicated her driving was for short distances only and, at the time of the hearing, she stated that she drove rarely. For these reasons, this is not a clear and convincing rationale supported by substantial evidence to discount her symptom testimony.
The only remaining reason the ALJ relied upon to discount Plaintiff's symptom testimony was his finding that it was inconsistent with the objective medical evidence. Specifically, he found the medical evidence inconsistent with Plaintiff's allegations of disabling physical limitations due to fibromyalgia, migraine headaches, and diabetes. Further, he noted that examinations revealed normal cognitive functioning, no evidence of attention deficit disorder, and no problems with focus, concentration, attention, or disturbances in thought content or process; instead, during examinations, she was alert and oriented, and in no acute distress. (AR 22, 23.)
If the objective medical evidence fully explained a claimant's symptoms, then her testimony would be irrelevant. Symptom testimony factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated fully by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount credibility solely because a claimant's symptoms are not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). As the objective evidence is the only remaining basis for the ALJ's rejection of Plaintiff's substantive symptom testimony (stemming from fibromyalgia, anxiety, and pain due to her back and shoulder impairments), it is insufficient to sustain it. Thus, the ALJ erred by failing to identify clear and convincing reasons, supported by substantial evidence, to reject Plaintiff's symptom testimony.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for "additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004).
Here, Plaintiff seeks solely a remand for further consideration. The Court finds that is the proper remedy. On remand, the ALJ should focus on the primary impairments that Plaintiff testified were impeding her ability to work, fibromyalgia, anxiety, and pain (due to fibromyalgia, but also a shoulder impingement and lumbar disc degeneration). The ALJ should obtain current medical opinions, including referrals for consultative exams if warranted.
The Magistrate Judge recommends that the District Court remand this matter to the ALJ for a new hearing and further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-0045-TUC-SHR.